[nene]

Do you know anybody who acquires new knowledge by reading patents?

1. Because of the legalese language in which patents are written it's pretty damn hard to even understand what is patented.

2. Even if you understand what the patent is about, it's probably of little help in implementing the thing by yourself, as the patent just describes the general idea.

3. If you indeed understand the idea, you might then come up with an improvement, but there's no benefit for you in publishing it, as the underlying idea is patented, the only one to gain from it is the patent holder.

4. You are encouraged by the system to not read patents, because if you happen to infringe one, your knowledge of the existence of patent can be used against you.

[ajkessler]

There is so much wrong here that I appreciate you numbering them.

-1. Yes, people read patents all the time. For one example many might be familiar with here, see any of the Mac or Canon or Nikon rumors sites, which comb through filings to learn what their favorite companies are up to. Second, the benefit comes not just from reading the actual patents. Since the info is already out there and protected, there's no real harm for those who developed the innovation in discussing it openly in journals/conferences/trade shows/popular magazines/newspapers/etc. We see this all the time, probably much more than if patents didn't exist.

1. Patents are generally written in pretty simple language. When they're hard to read, it's because the language used is technical, not legal.

2. This is just factually wrong. If you don't describe something, it's very difficult to try to prevent or collect from someone using the idea you haven't described.

3. Sure, for a limited time. This doesn't mean there aren't periphery benefits from seeing how someone did something novel. In the medical field, advances that utilize some novel technique often provoke other people to look at similar though unrelated techniques.

4. This is just factually and legal incorrect.

[aaronkaplan]

I spent ten years in a corporate research lab, and my experience was quite different from yours. Specifically,

1. Our process went like this: first the researcher wrote up a description of the invention for review by a panel of his peers. If the panel decided that a patent should be filed, then the file was handed off to a patent attorney, who transformed the clearly-written technical description into an incomprehensible mess of legal jargon. The inventor was supposed to review it and confirm that it accurately reflected his invention, but if asked in confidence, I suspect most of the inventors would admit that they didn't understand a word of it and just signed the application to get it off their desks. To reiterate: these things were so bad that the inventor himself didn't understand them.

4. There were conflicting opinions withing the company, but it is true that some people advise against doing a search of existing patents. I'm not an expert in the law, but as I understand it, if it can be shown that you had knowledge of the patent you were infringing, treble damages can be imposed. And in software, if you search hard enough you're sure to find something you're infringing.

I agree with your point -1. Once we had filed a patent, we were free to publish our work in journals and conferences, and these papers were written by the inventor with the intent of communicating, in contrast to the patents, which were written by a lawyer whose intent seemed, as far as I could tell, to be to obfuscate and confuse.

[ScottBurson]

You give no basis for your rejection of item 4, and while IANAL, I think you are wrong. I have definitely worked for companies whose corporate counsel advised us software engineers not to read patents related to the work we were doing. There is little to be gained by doing so, I was told, and it would expose the company to the possibility of triple damages if it somehow became known that we had infringed a patent we had read.

Yes, there are people who read patents, but AFAIK, at least in the area of software, they are not usually practitioners.

All that said, I actually agree with you that discarding the patent system entirely, even just for software, would be throwing out the baby with the bathwater -- but I also have to agree with those who argue that in the case of software, the baby/bathwater ratio is just awfully small.

[ajkessler]

RE your first point, you're sort of correct. Courts can award treble damages for willful and wanton infringement of a patent. Courts don't award treble damages willy nilly; they seem to award them when you intentionally rip off somebody's patent. Even if you know of another's patent rights, if you have a good faith claim as to why/how your patent doesn't infringe, and if you have a solid opinion letter from counsel, you generally won't get hit with increased damages, even if you lose the underlying suit.

RE software, I'd tend to agree with you. The original post makes the case that all patents are bad though, and that they specifically prevent that transmittal of knowledge. That's really what I was responding to.

[nene]

3. For a limited time? 20 years is pretty much forever in the software industry. So sure you might start to look at alternative ways, but it can be quite hard when the obvious solution is patented. But often the patent attempts to cover the most general idea possible, so your entirely different implementation of the idea might still be infringing the patent.

But the main problem with software patents in particular is that you can never be sure if you're infringing something. You can only hope that you don't.